Another federal judge permits litigation against the NSA to go forward

In the latest chapter of the ongoing NSA debacle, another plaintiff has won a …

Another lawsuit against the NSA will be permitted to move forward (PDF). Federal Judge Garr M. King sided with Judge Walker and pulled the plug on the government's attempt to block the lawsuit, which targets the NSA's controversial domestic eavesdropping program. The judge denied the government's motion to dismiss the case and refused to grant a summary judgement in favor of the government.

During the court proceedings, the government asserted state secrets privilege, a rule designed to prevent the release of information that could potentially be detrimental to national security. The state secrets privilege is considered a drastic measure, and it has been used only about 60 times in the past. Critics of the state secrets privilege argue that it can potentially be used to prevent government malfeasance from being revealed to the public.

In this particular case, one of the plaintiffs, the Al-Haramain Islamic Foundation, claims that the government froze its assets during an investigation prompted by a warrantless wiretap, a claim that is verified by classified documentation (referred to in the judge's decision as the Sealed Document) inadvertently given to the plaintiff. The government claims that national security would be threatened if the government confirms or denies the assertion that Al-Haramain was the subject of wireless eavesdropping. The basis for government's argument extends from the belief that a suspect who knows himself to be a target of government surveillance could "change his pattern of behavior, jepordizing the ability to collection intelligence information." The judge points out that the government's argument is irrelevant in this case, because "the government already inadvertently disclosed the Sealed Document to plaintiffs, thus alerting the individuals or organizations mentioned in the document that their communications have been intercepted in the past."

The government also claimed that, should the lawsuit be allowed to move forward, national security would be at risk, simply because certain details of the case could potentially be accumulated to reveal additional details. Known as the "mosaic" theory, the government's argument is "that any disclosure of any information related to the Surveillance Program or the Sealed Document would tend to allow enemies to discern, and therefore avoid, the means by which surveillance takes place under the program." The judge rejected this assertion, because he does not think that the case will necessitate public disclosure of "information regarding the al Qaeda threat" or "non-public details of the Surveillance Program."

Although the plaintiffs have dodged the state secrets bullet and managed to keep the lawsuit alive, Congress may yet intervene. Senator Arlen Specter has proposed a bill that would enable government to move legal challenges to the NSA wiretap program to the Foreign Intelligence Surveillance Court of Review where they would be hidden from public scrutiny. The bill would also allow the secret court to grant the president extensive surveillance powers with limited Congressional oversight. Antithetical to fourth amendment rights and the separation of powers doctrine, Specter's controversial surveillance bill will have a significant impact on this, and other, similar cases.